Williams v 100 Church Fee Owner LLC

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Williams v 100 Church Fee Owner LLC 2020 NY Slip Op 32460(U) July 27, 2020 Supreme Court, New York County Docket Number: 162738/2014 Judge: Paul A. Goetz Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. INDEX NO. 162738/2014 [* 1] RECEIVED NYSCEF: 07/27/2020 NYSCEF DOC. NO. 215 SUPREME PRESENT: C~URT OF THE STATE OF NEW YORK I NEW YORK COUNTY HON. PAUL A. GO(l:TZ PART IAS MOTION 47EFM Justice -----------------------------X 162738/2014 INDEX NO. RUTH WILLIAMS, MOTION DATE Plai tiff, MOTION SEQ. NO. _____ ____, 006 -v100 CHURCH FEE OWNER LLC, SL GREEN MANAGEMENT LLC, AND MCGOV6RN & COMPANY LLC, DECISION + ORDER ON MOTION I Defendants. __________________________________________________ _l _____________________________x The following e-filed documents, listed by NYSCEF document number (Motion 006) 164-180, 188-211 were read on this motion to/for SUMMARY JUDGMENT Plaintiff Ruth Williams com enced this personal injury action after sustaining injuries as l a result of a trip and fall in front of building owned by defendants 100 Church Fee Owner LLC ( 100 Church) and managed by SL +en Management LLC (SL Green) (collectively, 100 Church). In motion sequence 006, Ifendant McGovern & Company LLC (McGovern), the construction contractor, moves, pursl ant to CPLR 3212, for an order granting summary judgment dismissing plaintiffs complaint and all cross claims alleged against it. 100 Church cross-moves, pursuant to CPLR 3211, for an order granting summary judgment dismissing plaintiffs complaint and all cross cllims alleged against it. BACKGROUJD AND FACTUAL ALLEGATIONS Plaintiff alleges that, in the ahernoon of May 6, 2014, she sustained personal irtjuries after tripping on a recessed in-ground li+ting fixture, located on the sidewalk in fi-ont of her office building at 100 Church Street, Nel York, New York. Plaintiff filed an amended complaint, grounded in negligence, against 100 <:Church and also against McGovern, the construction company who had been hired to perform certaih renovation work on the ground floor lobby of the premises. The relevant facts are as follows: Page 1of19 1 of 19 INDEX NO. 162738/2014 [* 2] RECEIVED NYSCEF: 07/27/2020 NYSCEF DOC. NO. 215 Plaintiff's Testimony Plaintiff testified that there lere three light fixtures on the sidewalk that faced the building. Plaintiff described the fixtures as "[l]quare, protruding, lit" and with dimensions of approximately eight and a half by eight and a halfinches. NYSCEF Doc. No. 173, plaintiffs tr at 42. Plaintiff routinely walked by the fixtures an1 saw them on the date of her accident. She testified that the light fixtures were "uneven," and t~\at they "weren't all level together the same way." Id. at 35 .. Plaintiff had noticed them for at leas two to three years, because they were "pretty. It was unusual to have a light fixture in front of ci property, which I took it to be city property." Id. at 34. She had also always noticed that they wtre not the same height According to plaintiff, whel she was walking back to her office from lunch she "tripped on a protruding light fixture on the sidewalk." Id at 30. She stated that she did not watch out for the fixture, she would either pass b~ it, walk over it or step on it. "Because it's a square and has angles, you step on it in different positions each time you're walking." Id. at 77-78. However, on the date of the accident "my foot mist have not lined up with the fixture that was raised causing me to trip." Id. at 78. Plaintiff sustalned injuries to the right side of her body and testified that she still "cannot sleep on the right side+ my hody during the night." Id at 72. . Plaintiff continued that, wit in a week after her accident, she saw repairmen working on the light fixture and took pictures. he did not know why the repairmen were there, but testified that, after they left, the light fixture as flat and "level with the sidewalk." Id at 85. McGovern and the Agreement to Pe form Renovations On August 12, 2010, Med vern and 100 Church entered into an Owner-Contractor Agreement (Agreement) to perform "Lobby Renovation." NYSCEF Doc. No. 189, Merri111an aff, exhibit 2 at 1. The expected co pletion date was December 31, 2010. In relevant part, the Agreement states that McGovern agrees to perform the "Work" as described in Schedule A and the proposal dated June 11, 2010. I chedule A provides that McGovern will furnish all m&terial Page 2of19 2 of 19 INDEX NO. 162738/2014 [* 3] RECEIVED NYSCEF: 07/27/2020 NYSCEF DOC. NO. 215 and labor, among other things, in crmection with the "[g]eneral construction as per McGovern proposal .... and MG engineering/1PG Architecture drawings." Id at 10. I The indemnification provisi°I states as follows: To the fullest extent pennitt~d by law, Contractor shall indemnify and hold harmless (i) Owner and the Owner Part~es . . . . from and against all losses, liabilities, damages, judgments, costs, fines, penalties, actions or proceedings and attorneys' fees, and shall defend the Owner Indemnifi¢d Parties in any action or proceeding, including appeals, for personal injury to or death o~ any person, for loss or damage to property or for damage to the environment as a result o~the (i) acts, omissions or other conduct of Contractor, or any acts, omissions or other conuuct of its officers, directors, employees, subcontractors or agents, in connection with C~ntractor's performance of the Work and its other obligations under this Agreement or (id Contractor's performance or failure to perform under this Agreement, or any breach of ny warranty or representation of Contractor made under this Agreement. Id at 4. Pursuant to Schedule G of t i Agreement, McGovern was required to procure insurance, "[d]uring the entire term that the Agireement is in effect and until the Work is Finally Completed . . . . ." Id. at 19. In pertinent part, MdGovern was required to obtain Commercial General Liability Insurance coverage as primary ins~rance that would include coverage for the indemnification provision of the Agreement. McG vern was also required to procure Products and Completed Operations coverage that would ext d for three years beyond the completion of Work under the Agreement. Specifically, the releva t insurance requirements are set forth as follows: (c) Commercial General Lia ility Insurance, including Contractual Liability to specifically include coverage for the inde nification clause of this Agreement, Products & Completed Operations Liability (includibg XCU coverage), Broad Form Property Damage, Personal Injury Liability and Advert~·I ing Injury Liability, written on an occurrence form, with combined bodily injury and roperty damage limits of liability of no less than $5,000,000 per occurrence, $5,000,000 per project general aggregate, $5,000,000 Personal & Advertising Injury and $5,000,000 Products and Completed Operations liability, per project. All such insurance shall be primary insurance, notwithstanding any insurance maintained by Owner or any of the Owner Indemnified Parties. Products and Completed Operations coverage shall co tain a provision for an extension of three years beyond the completion of the work und r this Agreement, with such extended coverage to have a separate aggregate limit. Page 3of19 3 of 19 INDEX NO. 162738/2014 [* 4] RECEIVED NYSCEF: 07/27/2020 NYSCEF DOC. NO. 215 Id. at 19. Any defects in material or irkmllllship were guaranteed as follows: During the [one (1)] year peFiod after the Acceptance Date or during such longer period as is needed to complete the fuil use of operation of any equipment, as the case may be (the 'Guaranty Period'), Contractlor shall promptly repair, replace, restore, or rebuild any Work in which defects in material 1or workmanship may appear, or to which damage may occur because of such defects, In addition, all material warranties shall be deemed assigned to I Owner, although this ass~gnment shall not be deemed to abrogate Contractor's warranty/guaranty, repair or feplacement obligations under this Agreement, The Guaranty Period shall be extended by an additional year with respect to any particular item of Work found defective within the itiitial (one (1)] year Guaranty Period; with such additional one year Guaranty Period to co ence on the date Contractor completes its correction of the defective item. 1 1 Id at5. prepared c~nstru.ction documents, .ilcluding archi~ectural drawings. Under. the ~ect~on entitled. MEP Drawmg List, there are draw11.s corresponding to the first floor electncal hghtmg plan and the first floor and basement electricil power plan (E-101.00 and E-201.00). Id. at 15. There are also pictures of "in-ground luminaires," as provided by Lighting Management, Inc. Instant Action Plaintiff filed an amended cotplaint against defendants, grounded in negligence, alleging that she sustained injuries due to a " angerous, hazardous, and defective condition, consisting of an unlevel, worn, uneven, dangerous \defective public sidewalk, and/or improperly maintained and or improperly repaired public sidewilk at the Subject Location." NYSCEF Doc. No. 169, First Amended Complaint (F AC), if 30. She alleges that all defendants owned, operated, maintained, controlled, managed and repaired th sidewalk located at the site of the accident. In 100 Church's answer, in levant part, it asserted cross claims against McGovern. In the first cross claim, 100 Church is s eking contractual indemnification. The second cross claim alleges that McGovern breached its ontractual obligation by not producing liability insurance in Page 4of19 4 of 19 INDEX NO. 162738/2014 [* 5] RECEIVED NYSCEF: 07/27/2020 NYSCEF DOC. NO. 215 favor of I 00 Church. In the third er ss claim, 100 Church is seeking common law indemnification and contribution. The relevant testimony is as ollows: Derek McGovern (Derek) te tified that McGovern was owned by his brother and that it is no longer in business. Although D rek managed projects from 2012 to 2015, he did not manage the project at issue in this case. He stated that, in general, McGovern would hire electricians to perform electrical lighting fixture w rk as McGovern's employees were not qualified for that. He had an "electrical contractor" who ould hire the electricians. NYSCEF Doc. No. 174, Derek's tr at 63. He continued that McGoverl. along with the architect and engineer, would "inspect the work that the subcontractor did." Jj at 79. John DePetrillo (DcPetrillol an account executive formerly employed by McGovern, testified that McGovern was hired id 2010 to redo the lobby at 100 Church Street. He signed the Owner-Contractor Agreement on behalf of McGovern. Although he was present at the work site, DePetrillo testified tliat the installa+n o.f ground lights wa' '.10! a part of this project and !~at he did not recall anyone from McGovern domg work on the hghtmg fixtures. "All of our work m this I Contract was inside the lobby." NYiSCEF Doc. No. 177, DePetrillo tr at 56. McGovern "would contractor would supply the light fixtures." Id. at 18. He hire an electrician, a.JJd the electric testified that, in genetai, McGovern "give[s] a one-year warranty" for lighting work, including providing repairs. McGovern was n ver called back to do any work within the warranty period. When he was shown a picture of the allegedly defective lighting fixture, DePetrillo testified that he was not involved in installing that lighting fixture and that he would never leave a lighting I fixture in that condition as it "is a tripping hazard." Id. at 30. DePetrillo testified that, based on his experience, a lighting fixture leJ like that would not have been signed off on. He continued that it appeared to be sticking out of he ground about an inch. Looking at the picture, DePetrillo was unable to tell if when the lightin . fixture was installed it was level, or if it was already sticking out of the ground. He surmised th t someone would use Sikoplast caulk instead of doing the Page 5of19 5 of 19 INDEX NO. 162738/2014 [* 6] RECEIVED NYSCEF: 07/27/2020 NYSCEF DOC. NO. 215 procedure he described because the back box was not recessed properly and that this would have occurred during the initial installati n. "Typically there's a back box and the body of the fixture would be mounted below the surfac , and then the plate would get screwed to the back box where the plate would be flush with the s rounding stone or concrete." Id at 33. DePetrillo stated that the chitects would draft the specifications and the electrical drawings. However, the architects ere generally hired by the owner and then the architect would hire an engineering firm to do the elrtrical drawings. "They would inspect the work to see that it was done according to the drawing,." Id. at 27. The architect would sign off on the work and "usually would give a Letter of Com,pletion to the owner." Id. The engineers would also "inspect the lighting, mechanical, [and] electtical." Id. at 28-29. DePetrillo testified that there would also have to be a building inspection andl an electrical inspection completed by the City of New York prior to issuing a certificate of occlpancy for the building. He testified that the city electrical inspector "should have" taken an is sfe with the lighting fixture and that it should not have passed inspection. Id. at 60. De_P.etrillo d~d rot recogni~e the men. from the picture plaintiff had provided who were allegedly repamng the hg\1 fixture after her accident. Jennifer Ciccotto (Ciccotto)jworked as the property manager for the premises between 2012 and 2014. She testified thats e believed McGovern in~talled the light fixtures. Ho.wever, she stated that she was not present when the work was bemg done and that any repairs and maintenance "wouldn't necessarily Je done by McGovern." NYSCEF Doc. No. 175, Ciccotto tr at 27. She testified that McGovern Jrs not responsible for maintaining the lights and that she was not aware of anyone from McGovern repairing the lights. According to Ciccotto, the light fixtures looked the same from 2012 until 2014. Ciccotto further testified that the light maintenance vendor for the building, Klear Electric, probtbly changes the light bulbs. On the date of plaintiffs acJident, Ciccotto received a notification that plaintiff had an accident outside of the premises. SJe testified that, in general, she investigates the accident site and writes down if she noticed anyt ing. "For a slip and fall, I would go to check in the area if Page 6of19 6 of 19 INDEX NO. 162738/2014 [* 7] RECEIVED NYSCEF: 07/27/2020 NYSCEF DOC. NO. 215 there is any water on the floor, or if whatever the incident entails, we would go to investigate to see is there a reason that this m y have occurred." Id at 70. Ciccotto does not recall the investigation but states that she did not take any notes. "I wouldn't make a note unless there was something." Id Ciccotto did not ecognize the two people in the picture submitted by plaintiff who appear to be fixing the light fi~ture. McGovern's Motion for Summa 1ud ment McGovern argues that it sh uld be granted summary judgment because it did not have a duty to plaintiff and none of the ex eptions are present rendering plaintiff an intehded third-part beneficiary of the contractual rel, ionship between McGovern and 100 Church. McGovern continues that it ~erformed its oblil ati~ns. under t~e contract a~d did .not "launc~[] the fore~ of harm through" this performance. It lmamtams that '·McGovern did not improperly mstall the hght in the ground. Moreover, there is simply no evidence that McGovern actually installed the light fixture at all, let alone in a defectivJ manner." NYSCEF Doc. No. 165, Sperry affirmation,~ 27. In addition, pursuant to the Agreemj t, the work was finally completed more than three years prior to plaintiffs accident. McGovern further alleges th re is no evidence that it displaced 100 Church's obligation to maintain the premises free from defi ctive and hazardous conditions. Pursuant to the Agreement, McGovern was released from oblig . ions as of December 31, 2010, except for the requirement to maintain certain insurance for three ore years. Even so, according to McGovern, this would not entirely displace 100 Church's obl1igation to maintain the premises. In addition, Ciccotto's I testimony indicates that Klear Electr·c, not McGovern, would be responsible for repairing the light fixtures. McGovern claims that plain iffs complaint must be dismissed as the alleged defective condition was open and obvious and not inherently dangerous. Plaintiff testified that she noticed the light fixtures on a daily basis fi r at least three years and had never made any complaints. Further, plaintiff could easily walk ound the allegedly hazardous light fixture. Page 7 of 19 7 of 19 INDEX NO. 162738/2014 [* 8] RECEIVED NYSCEF: 07/27/2020 NYSCEF DOC. NO. 215 In the event that the complaint is not dismissed in its entirety, McGovern argues that the ' cross claims must be dismissed against it. Starting with the cross claim for contractual indemnification, McGovern states tJat, pursuant to the terms of the Agreement, there is no longer a duty to indemnify 100 Church. icGovern agreed to indemnify 100 Church for any injuries sustained as a result of McGovern's actions in connection with its work under the Agreement or for any breach of any warranty. cGovem was required to correct any defects for a one-year period. As plaintiffs accident did n t occur in connection with the work being performed and the 1 breach of warranty claim has expirer'· , 100 Church is not entitled to contractual indemnification. According to McGovern, there is no hing in the Agreement obligating it to defend and indemnify 100 Church beyond the completion date. In addition, McGovern was not responsible for any repairs or maintenance on the light fiktures. McGovern adds that 100 Church, artd not McGovern, has the obligation to keep the sidew lk or entranceway free from defective conditions. McGovern states that it pr cured and maintained the relevant insurance policies m accordance with the Agreement, witH the Products and Completed Operations portion of the policy expiring on December 31, 2013, whirlh was three years after the Work was Finally Completed. As a result, there is no basis for the breac of contract cross claim as McGovern produced an insurance I policy pursuant to the terms of the tgreement. McGovern also argues that any cross claims for common law indemnification or conrbution must be dismissed as McGovern did not owe a duty to plaintiff and was not responsible f1 r plaintiff's accident. Plaintiffs Opposition In opposition to McGovern' motion, plaintiff argues that summary judgment must be denied as several questions of fact re ain with respect to the light fixture. To begiq, according to plaintiff, McGovern failed to set forth any evidence that the light fixture was open and obvious. Plaintiff further claims that this issuJ would not preclude her negligence claim but would only be relevant for her comparative fault. Page 8of19 8 of 19 INDEX NO. 162738/2014 [* 9] RECEIVED NYSCEF: 07/27/2020 NYSCEF DOC. NO. 215 Even, assuming arguendo, the light fixture was open and obvious, plaintiff argues that summary judgment should be deni d. First, plaintiff argues that, pursuant to Administrative Code § 19-152 (a) (6), the raised and llegedly improperly installed light fixture is an inherently dangerous condition. While noting that the owner has a nondelegable duty to maintain and repair the sidewalk, plaintiff argues that McGovern too can be liable, if it launched an instrument of harm when improper! y inst•lling the Ii gh1 fixture. Second, plainti ff claims that qucsti ons of fact remain as to whether the light fixture is a trap or snare. While the light fixture was technically visible, the similar color of the caulking and le sidewalk, in addition to plaintiffs viewing angle along her walking path, among things, raise uestions of fact as to whether the light fixture was a trap or snare. 100 Church's Opposition 100 Church does not oppose McGovern's motion with respect to dismissing the complaint on the basis that the alleged conditifn was open and obvious and not inherently dangerous. 1 100 Church otherwise opposes McGove 's motion dismissing the complaint and cross claims, arguing that questions of fact remain as to lhether McGovern negligently performed its work under the contract. McGovern does not equivocally state whether or not it installed the lighting fixtures. However, according to I 00 Church[ it has provided evidence that McGovern was contractually obligated to install the lighting fixtur~ and that it completed the work. In support of this contention, I 100 Church submits the affidavit of\Roger Merriman (Merriman), SL Green's Vice President of Construction, who "oversaw the en,re construction project on behalf of SL Green in the regular course of my employment." Merrime aff, ~ 3. Merriman states that "[a]ll required work specified in the contract, including the installa ion of the subject in ground recessed lighting, was completed by McGovern." Id., ~ 4. He note that the project documents prepared by the architects and 1 100 Church also does not oppose ¥cGovem' s arguments with respect to dismissing the cross claim alleging a breach of contract for failure to procure insurance. Page 9of19 9 of 19 INDEX NO. 162738/2014 [* 10] RECEIVED NYSCEF: 07/27/2020 NYSCEF DOC. NO. 215 engineers contain drawings for the lcessed in-ground luminaires and that the product description and specification sheets are also attlched. According to 100 Church, ~cGovem' s request to dismiss the complaint on the basis that McGovern did not owe a duty to pla~ntiff should be rejected. As plaintiff claimed that her alleged accident was the result of the neglig~nt installation of the lighting fixture, "the finder of fact could determine that McGovern was activf ly negligent and launched an instrument of harm, relative to the installation .... ," NYSCEF Dor- No. 188, Goldstein a~firmati~n, iJ .13. . . . lQO Church alleges that, pursuant to the contractual mdemmficat10n prov1s10n, McGovern is requfred to indemnify I 00 Churc from any damages resulting from any acts or omissions in coimection with McGovern's, or Mc overn's subcontractor's, performance of the work under the ~greement. It continues that, if the\trier of fact d~termin~s that t~e light fixture was negligently mstalled, McGovern would be conractually reqmred to mdemrufy 100 Church. Although the warranty provision guarantees Mf Govern' s work for a specific period, the contractual indemnification has no expiration date. I 00 Church believes that these provisions are mutually . .. I exclusive and that McGovern would\be liable for contractual indemnification. Further, Merriman's affidav~t allegedly "provides specific and compelling evidence that McGovem actually completed the lithting installation .... " Id.,~ 12. As a result, if the trier of fact determines that McGovern negl':gently installed the light fixture, 100 Church may be entitled to corrunon law indemnification and ontribution. I 00 Church's Cross Motion 100 Church concedes that th cross motion is untimely, as it was not filed within 60 days of the filing of the note of issue. N~vertheless, it argues that the court should consider the cross I f motion, on the grounds that it was made in response to McGovern's pending summary judgment motion and, similar to McGovern's otion, addresses the open and obvious doctrine. According to 100 Church, it is entitled to sunnnary judgment dismissing the complaint because the in-ground recessed li hting fixture was open and obvious and not inherently Page 10of19 10 of 19 INDEX NO. 162738/2014 [* 11] RECEIVED NYSCEF: 07/27/2020 NYSCEF DOC. NO. 215 dangerous. Plaintiff testified that ~he routinely and intentionally stepped on the light for many years without incident. Further, as i:ilaintiff testified that she appreciated the light, no duty to warn exists. 100 Church summarizes thall it did not breach any duty of care to plaintiff, "including any duty to warn [plaintiff! of the c ndition of the subject light, in light of her in-depth and longstanding awareness about the resence of the light. Thus, cross-movants cannot bear any liability to [plaintiff] in the case at bk." NYSCEF Doc. No. 201, Goldstein affirmation,~ 27. DISCUSSION I. Summary Judgment "On a motion for summary judgment, facts must be viewed 'in the light most favorable to the non-moving party"' (Vega v Res\ani Constr. Corp., 1RNY3d499, 503 [2012], quoting Ortiz v Varsity Holdings, LLC, 18 NY3d j35, 339 [2011]). The "movant bears the heavy burden of establishing 'a prima facie showing ff entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate tlie absence of any material issues of fact"' (Deleon v New York City Sanitation Dept., 25 NY3j 1102, 1106 [2015], quoting Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]; see Winegr+v New York Univ. Med Ctr., 64 NY2d 851, 853 [1985]; Zuckerman v City ofNew York, 49 NY2d 557, 562 [1980]). "Once this showing has been made . .,_,the burden shifts to the party opp~sing the motion ... to produce evidentiary proof iJJ admissible form sufficient to establish the existence of material issues of fact which require a trial of the action'~ (Alvarez v Prospe t Hosp., 68 NY2d at 324; see Zuckerman v City ofNew York, 49 NY2d at 562). "[T]he court's function is 1ssu finding rather than issue determination" (Genesis Merchant Partners, L.P. v Gilbride, Tusa, Lat & Spellane, LLC, 157 AD3d 479, 481 [1st Dept 2018]). Page 11of19 11 of 19 INDEX NO. 162738/2014 [* 12] RECEIVED NYSCEF: 07/27/2020 NYSCEF DOC. NO. 215 "[S]ummary judgment is a drastic remedy that should be employed only when there is no doubt as ~Q the absence of triable issues" (AgJilar v City ofNew York, 162 AD3d 601, 601 [1st Dept 2018]). II. I 00 Church's Cross Motion 100 Church cross-moved fa summary judgment dismissing the complaint and any cross claims. 2 While conceding that the ross motion is untimely, 100 Cl:mrch requests that the court consider the cross motion. 100 Church's cross motion r summary judgment must be denied because it is untimely. The cross motion against plaintiff, }nonmoving party, "was not a true cross motion." Rubino v 330 Madison Co., LLC, 150 AD3d 03, 604 (1st Dept 2017). Furthermore, 100 Church did not provide good cause for the delay. Se e.g. Muqattash v Choice One Pharm. Corp., 162 AD3d 499, S00 (I st Dept 2018) (internal quotattn marks and ci talion omitted) ("The court properly declined to consider Choice One's cross motions for summary judgment since .... Choice One did not provide good cause for its delay. In any event, these motions were not true cross motions as they each sought, at least in part, relief against norunoving parties"). I III. McGovern's Motion for Summary Judgment To sustain a cause of action Jleging negligence, a plaintiff must demonstrate the existence of a duty, a breach of that and that the breach of such duty was a proximate cause of his or her injuries. If there i~ no duty of care owed by the defendant to the plaintiff, there can be no breach and, conseq~ently, no liability can be imposed upon the defendant. du~, AD[ I Mojica v Gannett Co., Inc., 71 963, 965 (2d Dept 2010) (internal quotation marks and citations omitted). McGovern argues that the co plaint and any cross claims must be dismissed as against it as there is no evidence that McGovJrn was negligent or violated some duty of care. McGovern also makes the argument that the cfmplaint must be dismissed as a matter of law against all defendants, because the lighting fixt e constituted an "open and obvious" condition and there was would be rendered moot if the complaint is dismissed in its 2 There are no cross claims asserted against OD Church, Page 12 of 19 12 of 19 INDEX NO. 162738/2014 [* 13] RECEIVED NYSCEF: 07/27/2020 NYSCEF DOC. NO. 215 entirety, this argument will be addrised first. See Turchioe v AT&TCommunic;ations, 256 AD2d 245, 246 (I st Dep~ 19~8~ ("The thir -p~rty. ac.tions ~nd all cross claims are dismissed as a necessary consequence of d1sm1ssmg the com lamt m its entirety"), I The underlying premise oftfe open and obvious doctrine is the following: Where a danger is readily ~pparent as a matter of common sense, there should be no liability for failing to warn someone of a risk or hazard which he [or she] appreciated to the same extent as a warning would have provided. Put differently, when a warning would have added nothing to the urer's appreciation of the danger, no duty to warn exists as no benefit would be gained by requiring a warning. Westbrook v WR Activities-Cabrej Mkts., 5 AD3d 69, 71 (1st Dept 2004) (internal quotation marks and citations omitted). Defendants argue that the lighting fixture was open and obvious because plaintiff had noticed the fixture for at least tlrree \years on a daily basis, including on the date of her accident. Furthermore, at times, plaintiff woufd intentionally walk on the fixture .. Plaintiff argues that the hghtmg fixture was not open and o°iv1ous as, among other thmgs, the height differential between the fixture and the sidewalk was d fficult to observe, because the caulking around the fixture blended in with the sidewalk. As s 1e entered the building, her foot came into contact with the fixture, causing her to fall. The question of whether a c ndition is open and obvious is "generally a jury question," and "even visible hazards do not n~cessarily qualify as open and obvious." Id. at 72; see al..<o Mauriello v Port Auth. of NY & N\, 8 AD3d 200, 200 (1st Dept 2004) ("Whether an asserted hazard is open and obvious cantiot be divorced from the surrounding circumstances"). Furthermore, "[p]laintiffs awarenes\ of a dangerous condition docs not negate a duty to warn of the hazard, but only goes to the issle of comparative negligence." Farrugia v 1440 Broadway Assoc., 163 AD3d 452, 454-455 (1st' ept 2018). Therefore, under the circumstances, McGovern has not demonstrated that this allege defect is open and not inherently dangerous. 1 Page 13of19 13 of 19 INDEX NO. 162738/2014 [* 14] RECEIVED NYSCEF: 07/27/2020 NYSCEF DOC. NO. 215 Moreover, even if the con. ition was open and obvious, the complaint could not be dismissed in its entirety at this time! as plaintiff is not only claiming a failure to warn but also a failure of 100 Church to maintain the premises in a safe manner. 100 Church, as the building owner, still "has a nondelegable dutylto maintain it~ premises in a reasonahly s~e condition, takmg mto account the foreseeab1hty of 111JUYY to others." Id at 454. This duty to mruntam the prermses I in a safe manner is a distinct duty frbm a duty to warn. See Lawson v Riverbay Corp., 64 AD3d 445, 446 (I st Dept 2009) ("the open ~d obvious nature of an obstacle simply negates the property owner's duty to warn of a hazard; it dloes not eliminate the property owner's duty to ensure that its property is reasonably safe"). Accordingly, since issues o, fact remain whether the lighting fixture was an open an.d obvious condition and whether 1O~ Church breached its duty to maintain the premises in a reasonably safe condition resulting if foreseeable injury to plaintiff, summary judgment is denied dismissing the complaint on this bas1s. In general, an independent contractor, such as McGovern, is not liable in tort or for breach of contract for injuries sustained by~ third party. Espinal v Melville Snow Contractors, 98 NY2d 136 (2002) (Espinal). However, three exceptions occur, which include the following; (1) where the contracting paijty, in failing to exercise reasonable care in the performance of his duties, "launche[s] force or instrument of harm"; (2) where the plaintiff detrimentally relies on the co famed performance of the contracting party's duties and (3) where the contracting party s entirely displaced the other party's duty to maintain the premises safel.)l. a Id. at 140. (internal citations omitted). Both plaintiff and 100 Church argue that the first exception, as presented in Espinal (supra), apples to McGovern. "As part of its prima facie sh· wing, a contracting defendant is only required to negate the applicability of those Espinal exceptions that were expressly pleaded by the plaintiff or expressly set forth in the plaintiffs bill of particmlars." Barone v Nickerson, 140 AD3d 1100, 1101 (2d Dept 2016) (internal quotation marks and itations omitted). Here, plaintiff only provides conclusory Page 14of19. 14 of 19 INDEX NO. 162738/2014 [* 15] RECEIVED NYSCEF: 07/27/2020 NYSCEF DOC. NO. 215 allegations in the bill of particul\ s and the amended complaint that McGovern "created or exacerbated the alleged dangerous ~onditions and, thus, launched a force or instrument of harm." Id at 1102. As a result, by sub~itting the Agreement between 100 Church and McGovern, McGovern has met its burden oo su\nmary judgmeotto establish that it did not owe plaintiff a duty of care because plaintiff was not a party to the contract. See e.g. Hagan v City of New York, 166 I ADJ d 590, 592 (2d Dept 2018) ("Hbre, Temco established its prima facie entitlement to judgment as a matter of law by demonstratin , prima facie, that the plaintiff was not a party to its cleaning services contract, and that it, thus, o ed him no duty of care"). Plaintiff fails to raise a triable fact in opposition. 100 Church argues that Mcfovern's request to dismiss the complaint on the basis that it owed no duty to plaintiff should b~\~enied, as questions of fact remain as to whether McGovern launched an instrument of harm due\ to its negligent installation of the lighting fixture. McGovern essentially argues that there is insufficient evidence to demonstrate that it installed the lighting fixtures. In addition, even if it did install the fixtures, it did not install them improperly. 100 Church claims that McGovern did I.install the lighting fixtures, pursuant to the documents and drawings prepared by the architect a d the engineering consultants in connection with the lighting plan. Contrary to McGovern's arg ent, there is sufficient evidence to raise an issue of fact as to whether McGovern installed the lighting fixture. According to the project documents aru1exed to the Merriman affidavit, McGove\: was required under its contract to install the recessed inground lighting fixtures. While DePetrillo testified that any installed light fixtures would have been inspected and approved by tht project architect among other people, McGovern did not present any evidence to support this <1-ssertion. Therefore, a question of fact remains as to whether M.cG overn installed the recessed with the plans or whether 1t m-~ound Ii ght. fixtures md, if so, whether it did so in accordance faile~ to exercise reasonable care m fulfillmg its contractual obligations, thereby laUD,ching the in \trument of harm to plaintiff. Page 15of19 15 of 19 INDEX NO. 162738/2014 [* 16] RECEIVED NYSCEF: 07/27/2020 NYSCEF DOC. NO. 215 Accordingly, McGovern's s mary judgment motion dismissing plaintiffs complaint as against it must be denied. IV. Cross Claims Against McGove p Contractual Indemnification As set forth above, there is 'f.l section in the Agreement referencing indemnification and there is Schedule G, which sets fort!I.the insurance requirements. There is also another provision, defects, which indicates that any de ects in material or workmanship have a one-year guaranty, with another one-year guaranty ,vailable from the date the defects are repaired. The I indemnification provision requires lcGovern to indemnify 100 Church for damages sustained as a result of the acts of omissions ofMlGovern or its subcontractors in connection with McGovern's performance of the Work or other obligations under this Agreement, or, to indemnify 100 Church for any breach of warranty under thi Agreement. The Work under the Agreement is set forth as lobby renovation work, with a finite tart and end date of August 12, 2010 and December 31, 2010. respectively. Schedule G, insurance requir ments, has the same finite start and end dates, stating that the policies of insurance are to remain ·. effect during the time the Agreement is in effect until tb~ Work is finally completed. It refe ences the indemnification provision, requiring commercial general liability insurance to "specifically include coverage for the indemnification clause of this Agreement .... " Parallel to the breLh of warranty in the indemnification provision, there was a carve-out for the Products and Competed Operations insurance coverage to extend for three years beyond the completion of the Work. It is well settled that "[a] read~ng of the contract should n~t ren~er any porti~n meaningless. Further, a contr~ct should be read as la whole, and every p.art wt!! be mterpreted with reference to the whole; and if possible it will be f° mterpreted as to give effect to its general purpose." Beal Sav. Bank v Sommer, 8 NY3d 318, 324-325 (2007) (internal quotation marks and citations omitted). 100 Church's interpretatio that the indemnification provision should be read separately Page 16of19 16 of 19 INDEX NO. 162738/2014 [* 17] RECEIVED NYSCEF: 07/27/2020 NYSCEF DOC. NO. 215 from the remainder of the agreeme t and therefore, that it had no expiration date countermands the principle that "[a]ll parts of [a] lontract must be read in harmony to determine its meaning." Matter of Bombay Realty Corp. v Jagna Carta, 100 NY2d 124, 127 (2003). "A party is entitled to full contractual indemnification p ovided that the intention to indemnify can be clearly implied from the language and purposes of the entire agreement and the surrounding facts and circumstances." Karwowski v 1407 Broadway Real Estate, LLC, 160 AD3d 82, 87-88 (1st Dept I 2018) (internal quotation marks and citations omitted). Courts have "refused to place a burden f upon a contractor 'which he did not ixpressly assume and which it is irtconteivable he would have accepted.'" Luby v Rotterdam Sq., .P., 47 AD3d 1053, 1056 (3d Dept 2008), quoting Inman v Binghamton Rous. Auth., 3 NY2d 1 7, 148 (1957). The parties entered into a co tract for a limited period of time, after which McGovern was no longer responsible for repair and o longer agreed to indemnify. Here, any viable contractual indemnification claim would have to stern from a personal injury occurring prior to December 31, 2010, or from a claim arising fro defective work or breach of warranty occurring prior to December 31, 2013. As plaintiffs a cident took place after both of those dates, McGovern is not contractually required to indemnify 00 Church and is granted summary judgment dismissing this cross claim. Accordingly, McGovern is e titled to summary judgment on 100 Church's cross claim for contractual indemnification. Breach ofContract McGovern has met its burd on summary judgment dismissing the breach of contract cross claim for failure to procure ins ranee by establishing that it did comply with its obligation to procure insurance pursuant to the terms of the Agreement and there is no contrary evidence presented. Accordingly, McGovern is e itled to summary judgment on 100 Church's cross claim for breac.h of contract.. Page 17of19. 17 of 19 INDEX NO. 162738/2014 [* 18] RECEIVED NYSCEF: 07/27/2020 NYSCEF DOC. NO. 215 Common Law Indemnification "The right to indemnification may e created by express contract or may be implied by law to prevent an unjust enrichment or an u fair result." Trustees ofColumbia Univ. v Mitchell!Giurgola Assoc., 109 AD2d 449, 451-452 (l Jt Dept 1985). As discussed, the contractual indemnification I provision in the Agreement was notlin force by the time plaintiff's accident occurred. However, the right to indemnification may be\ implied by common law to "prevent an unfair result or the unjust enrichment of one party at the expense of the other." Richter v Hunter's Run Homeqwners Assn. Inc., 14 AD3d 601, 602 (2d Dlpt 2005). To be granted summary !judgment dismissing a cross claim for common law indemnification, a contractor must eJtablish "that the injured plaintiff's accident was not due solely to its negligent performance or nonr\ erforrnance of an act solely within its province." Roach v AVR Realty Co., LLC, 41 AD3d 821, 824 (2d Dept 2007). As set forth above, a question of fact exists as to whether McGovern launlhed the instrument of harm by negligently installing the light fixture. Accordingly, McGovern's m tion for summary judgment on 100 Church's cross claim for common law indemnification must Je denied. Contribution "Contribution is generally a [ailable as a remedy when two or more tort-feasors share in responsibility for an injury, in violation of duties they respectively owe[] to the injured person." Trump Viii. Section 3 v New York Strte llous. Fin. Agency, 307 AD2d 891, 896 (I st Dept 2003) (internal quotation marks and citatior omitted). Again, as shown above, since a question of fact remains as to whether McGovern negligently installed the light fixture, 100 Church has a viable contribution cross claim against it. Accordingly, McGovern is ot entitled to summary judgment dismissing 100 Church's cross claim for contribution. Page 18of19 18 of 19 [* 19] INDEX NO. 162738/2014 NYSCEF DOC. NO. 215 RECEIVED NYSCEF: 07/27/2020 CONCLUSION Accordingly, it is ORDERED that the motion for summary judgment brought by defendant McGovern & Company LLC dismissing plaintiff'~ complaint is denied; and it is further ORDERE~ that. the motion lfor _smnmary judgment brought by defendant McGovem ~ Company LLC d1sm1ssmg the cross claims agamst it 1s granted to the extent that 100 Church s cross claims for contractual inde ification and breach of contract are dismissed, and that thy motion to dismiss the cross claims i otherwise denied; and it is further ORDERED that the cross otion for summary judgment brought by defendants 100 Church Fee Owner LLC and SL Gre n Management LLC, is denied; and it is further ORDERED that all remainin claims are severed and shall continue. 7/;i_7 Mo ----P~_A_U_L_A_. J~~~.-c.-+..-'-=---=-- G_O_E_T_.,P'-. DATE CHECK ONE: APPLICATION: CHECK IF APPROPRIATE: ~ CASE DISPOSED GRANTED I D NoN-F1NAL DISPOSITION DENIED GRANTED IN PART SETTLE ORDER SUBMIT ORDER INCLUDES T FIDUCIARY APPOINTMENT NSFERIREASSIGN 0 D OTHER REFERENCE Page 19of19 19 of 19

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